Exhibit 1
10,350,000 Shares
(subject to increase up to 11,902,500 shares
in the event of an oversubscription)
THISTLE GROUP HOLDINGS, CO.
(a Pennsylvania corporation)
Common Stock
(par value $.10 per share)
AGENCY AGREEMENT
April __, 0000
Xxxxxxx X'Xxxxx & Partners, L.P.
Two World Trade Center, 000xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Thistle Group Holdings Co., a Pennsylvania corporation (the
"Company"), FJF Financial, M.H.C., a federally chartered mutual holding company
(the "Mutual Holding Company"), Thistle Group Holdings, Inc., a Pennsylvania
corporation (the "Mid-Tier Holding Company"), and Roxborough-Manayunk Federal
Savings Bank, a federally chartered stock savings bank (the "Bank"), hereby
confirm their agreement ("Agreement") with Sandler X'Xxxxx & Partners, L.P.
("Sandler X'Xxxxx" or the "Agent") with respect to the offer and sale by the
Company of 10,350,000 shares (subject to increase up to 11,902,500 shares in the
event of an oversubscription) of the Company's Common Stock, par value $.10 per
share (the "Common Stock"). The shares of Common Stock to be sold by the Company
are hereinafter called the "Securities."
The Bank organized the Company and, upon consummation of the following
transactions pursuant to a Plan of Conversion and Reorganization (the "Plan" or
"Plan of Conversion and Reorganization"), intends to become a wholly owned
subsidiary of the Company: (1) the Mid-Tier Holding Company will convert first
into a federal stock holding company and then into an interim federal stock
savings bank. Following the Mid-Tier Holding Company's conversion into an
interim federal stock savings bank, it will merge with
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and into the Bank, with the Bank as the survivor; (2) the Mutual Holding Company
will convert into an interim federal stock savings institution and merge with
and into the Bank, pursuant to which the Mutual Holding Company will cease to
exist and the 1,415,000 shares (or 87.29%) of the outstanding common stock of
the Mid-Tier Holding Company (the "Mid-tier Common Stock") currently held by the
Mutual Holding Company will be cancelled; (3) the Company then will acquire the
Bank and the Bank will become a wholly owned subsidiary of the Company, changing
its name upon completion of the Conversion and Reorganization to
Roxborough-Manayunk Bank; (4) the holders of the 206,000 shares (or 12.71%) of
the outstanding Mid-Tier Common Stock (other than the Mutual Stock Company in
its capacity as stockholder, the "Public Stockholders"), will, subject to any
dissenters' rights, receive Common Stock in an exchange (the "Exchange Shares")
pursuant to a ratio (the "Exchange Ratio") that will result in the Public
Stockholders owning in the aggregate approximately the same percentage of the
outstanding Common Stock immediately following the Conversion and Reorganization
as they held prior to the Conversion and Reorganization.
Non-transferable rights to subscribe for Common Stock ("Conversion
Stock") in a subscription offering (the "Subscription Offering") will be
granted, in order of priority, to the following: (1) depositors of the Bank who
had account balances of $50.00 or more as of the close of business on December
31, 1996 ("Eligible Account Holders"); (2) the Bank's employee stock ownership
plan (the "ESOP") in an amount up to 8% of the Shares; (3) depositors of the
Bank who had account balances of $50.00 or more as of the close of business on
March 31, 1998 ("Supplemental Eligible Account Holders"); and (4) depositors of
the Bank as of _________ __, 1998 (the "Voting Record Date") (other than
Eligible Account Holders and Supplemental Eligible Account Holders) and certain
borrowers as of December 31, 1992 ("Members").
Subject to the prior rights of holders of subscription rights,
Conversion Stock not subscribed for in the Subscription Offering is being
offered first to Public Stockholders and then in a Community Offering (the
"Community Offering") to certain members of the general public to whom a copy of
the Prospectus (as defined herein) is delivered by or on behalf of the Company,
with preference given to natural persons residing in the Pennsylvania counties
of Philadelphia and Delaware (the "Local Community"). It is acknowledged that
the purchase of Common Stock in the Subscription or Community Offerings is
subject to the minimum and maximum purchase limitations as described in the Plan
and the Prospectus and the Company may reject, in whole or in part, any orders
received in the Community Offering. The closing of all shares sold in the
Subscription and Community Offerings will occur simultaneously and all shares of
Conversion Stock will be sold at a uniform price of $10.00 per share.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-48749), including a related prospectus, for the registration of the
Securities under the Securities Act of 1933, as amended (the "Securities Act"),
has filed such amendments thereto, if any, and such
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amended prospectuses as may have been required to the date hereof by the
Commission in order to declare such registration statement effective, and will
file such additional amendments thereto and such amended prospectuses and
prospectus supplements as may hereafter be required. Such registration statement
(as amended to date, if applicable, and as from time to time amended or
supplemented hereafter) and the prospectuses constituting a part thereof
(including in each case all documents incorporated or deemed to be incorporated
by reference therein and the information, if any, deemed to be a part thereof
pursuant to the rules and regulations of the Commission under the Securities
Act, as from time to time amended or supplemented pursuant to the Securities Act
or otherwise (the "Securities Act Regulations")), are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be used by the Company in connection with the
Subscription and/or Community Offering which differs from the Prospectus on file
at the Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by the Company
pursuant to Rule 424(b) of the Securities Act Regulations), then the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Agent for such use.
Concurrently with the execution of this Agreement, the Company
is delivering to the Agent copies of the Prospectus of the Company to be used in
the Subscription and Community Offerings. Such prospectus contains information
with respect to the Bank, the Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Common Stock.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank jointly and severally represent and warrant to the
Agent as of the date hereof as follows:
(i) The Registration Statement has been declared
effective by the Commission, no stop order has been issued with respect
thereto and no proceedings therefor have been initiated or, to the
knowledge of the Company, the Mutual Holding Company, the Mid-Tier
Holding Company and/or the Bank, threatened by the Commission. At the
time the Registration Statement became effective and at the Closing
Time referred to in Section 2 hereof, the Registration Statement
complied and will comply in all material respects with the requirements
of the Securities Act and the Securities Act Regulations and did not
and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the date
hereof does not, and at the Closing Time referred to in Section 2
hereof will not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that
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the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
with respect to the Agent furnished to the Company in writing by the
Agent expressly for use in the Registration Statement or Prospectus
(the "Agent Information," which the Company and the Bank acknowledge
appears only in the sections captioned "Market for Common Stock" and
the first two paragraphs of the section "The Conversion and
Reorganization - Marketing Arrangements" of the Prospectus).
(ii) The Company has filed with the Department of the
Treasury, Office of Thrift Supervision (the "OTS") the Company's
application for approval of its acquisition of the Bank (the "Holding
Company Application") on Form H-(e)1-S promulgated under the savings
and loan holding company provisions of the Home Owners' Loan Act, as
amended ("HOLA") and the regulations promulgated thereunder. The
Company has received written notice from the OTS of its approval of the
acquisition of the Bank, such approval remains in full force and effect
and no order has been issued by the OTS suspending or revoking such
approval and no proceedings therefor have been initiated or, to the
knowledge of the Company or the Bank, threatened by the OTS. At the
date of such approval and at the Closing Time referred to in Section 2,
the Holding Company Application complied and will comply in all
material respects with the applicable provisions of HOLA and the
regulations promulgated thereunder.
(iii) Pursuant to the rules and regulations of the
OTS governing the conversion of federally chartered mutual savings
banks to stock form (the "Conversion Regulations"), the Mutual Holding
Company has filed with the OTS an Application for Approval of
Conversion on Form AC ("Conversion Application"), including the
Prospectus, the Conversion Valuation Appraisal Report by FinPro
Financial, Inc. (the "Appraisal") and has filed such amendments thereto
as may have been required by the OTS. The Mutual Holding Company's
Conversion Application has been approved by the OTS by letter dated
_________ __, 1998. Such approval remains in full force and effect and
no order has been issued by the OTS suspending or revoking such
approval and no proceedings therefor have been initiated or, to the
knowledge of the Company or the Bank, threatened by the OTS. At the
date of such approval and at the Closing Time referred to in Section 2,
the Conversion Application complied and will comply in all material
respects with the applicable provisions of the Conversion Regulations
and the related Prospectus has been authorized for use by the OTS.
(iv) The Bank has filed with the OTS a Conversion
Application, and has filed such amendments thereto and supplementary
materials as may have been required to the date hereof including copies
of the Bank's Proxy Statement, dated ______________, 1998, relating to
the Conversion (the "Proxy Statement"), and the Prospectus. The OTS
has, by letter dated __________, 1998, approved the Bank's
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Conversion Application. Such approval remains in full force and effect
and no order has been issued by the OTS suspending or revoking such
approval and no proceedings therefor have been initiated or, to the
knowledge of the Company or the Bank, threatened by the OTS. At the
date of such approval and at the Closing Time referred to in Section 2,
the Conversion Application complied and will comply in all material
respects with the applicable provisions of the Conversion Regulations
and the related Prospectus has been authorized for use by the OTS.
(v) At the time of their use, the Proxy Statement and
any other proxy solicitation materials will comply in all material
respects with the applicable provisions of the Conversion Regulations
and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company and the Bank will promptly file the
Prospectus and any supplemental sales literature with the Commission
and the OTS. The Prospectus and all supplemental sales literature, as
of the date the Registration Statement became effective and at the
Closing Time referred to in Section 2, complied and will comply in all
material respects with the applicable requirements of the Conversion
Regulations and, at or prior to the time of their first use, will have
received all required authorizations of the OTS for use in final form.
(vi) No order has been issued by the Commission, OTS,
or the Federal Deposit Insurance Corporation ("FDIC") (hereinafter any
reference to the FDIC shall include the SAIF) preventing or suspending
the use of the Prospectus and no action by or before any such entity to
revoke any approval, authorization or order of effectiveness related to
the Conversion is, to the best knowledge of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company or the Bank, pending or
threatened.
(vii) At the Closing Time referred to in Section 2,
the Company, the Mutual Holding Company, the Mid-Tier Holding Company
and the Bank will have completed the conditions precedent to the
Conversion, including obtaining the approval of the members of the
Mutual Holding Company and the stockholders of the Bank, in accordance
with the Plan, the applicable Conversion Regulations and all other
applicable laws, regulations, decisions and orders, including all
material terms, conditions, requirements and provisions precedent to
the Conversion imposed upon the Company or the Bank by the OTS, the
FDIC, or any other regulatory authority, other than those which the
regulatory authority permits to be completed after the Conversion. To
the best knowledge of the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank, no person has sought to obtain
review of the final decision of the OTS in approving the Conversion or
the Holding Company Application, or any other statue or regulation.
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(viii) FinPro Financial, Inc. ("FinPro"), which
prepared the valuation of the Bank as part of the Conversion, has
advised the Company, the Mutual Holding Company, the Mid-Tier Holding
Company and the Bank in writing that it satisfies all requirements for
an appraiser set forth in the Conversion Regulations and any
interpretations or guidelines issued by the Superintendent and the FDIC
with respect thereto.
(ix) Deloitte & Touche LLP ("Deloitte & Touche), the
accountants who certified the consolidated audited financial statements
and supporting schedules of the Bank included in the Registration
Statement have advised the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank in writing that they are
independent public accountants within the meaning of the Code of Ethics
of the American Institute of Certified Public Accountants and Title 12
of the Code of Federal Regulations and Section 571.2(c)(3), and such
accountants are, with respect to the Company, the Mutual Holding
Company, the Mid-Tier Holding Company and the Bank and each subsidiary
of the Bank, independent certified public accountants as required by
the Securities Act and the Securities Act Regulations.
(x) The only subsidiaries of the Bank are __________
and _________.
(xi) The consolidated financial statements and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the financial position of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company, the Bank and the
Bank's consolidated subsidiaries at the dates indicated and the results
of operations, retained earnings and cash flows for the periods
specified, and comply as to form in all material respects with the
applicable accounting requirements of the Securities Act Regulations
and the Conversion Regulations; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis; and the supporting schedules and tables included in
the Registration Statement present fairly the information required to
be stated therein. The other financial, statistical and pro forma
information required to be stated therein are consistent with the
audited and unaudited financial statements of the Bank included in the
Prospectus, and as to the pro forma adjustments, the adjustments made
therein have been properly applied on the basis described therein.
(xii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein (A) there has been no material
adverse change in the financial condition, results of operations or
business affairs of the Company, the Mutual Holding Company, the
Mid-Tier Holding Company, the Bank and the Bank's subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and (B) except
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for transactions specifically referred to or contemplated in the
Prospectus, there have been no transactions entered into by the
Company, the Mutual Holding Company, the Mid-Tier Holding Company or
the Bank or any of the Bank's subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company, the Mutual Holding Company, the Mid-Tier Holding Company, the
Bank and the Bank's subsidiaries, considered as one enterprise. There
has been no material increase in the long-term debt of the Mutual
Holding Company, the Mid-Tier Holding Company or the Bank or in the
principal amount of the Bank's assets which are classified by the Bank
as substandard, doubtful or loss or in loans past due 90 days or more
or real estate acquired by foreclosure, by deed-in-lieu of foreclosure
or deemed in-substance foreclosure or any material decrease in retained
earnings or total assets of the Bank. There has not been any material
adverse change in the aggregate dollar amount of the Bank's deposits or
its consolidated net worth or spread. There has been no material
adverse change in the Company's, the Mutual Holding Company's, the
Mid-Tier Holding Company's or the Bank's fidelity bond or any other
type of insurance coverage. None of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company or the Bank has sustained any
material loss or interference with its respective business or
properties from fire, flood, windstorm, earthquake, accident or other
calamity whether or not covered by insurance.
(xiii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would
not have a material adverse effect on the financial condition, results
of operations or business affairs of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries, considered as one enterprise. The Company has obtained
all material licenses, permits, and other governmental authorizations
currently required for the conduct of its business; all such licenses,
permits and governmental authorizations are in full force and effect,
and the Company is in all material respects complying with all laws,
rules regulations and orders applicable to the operation of its
business.
(xiv) Upon consummation of the Conversion, the
authorized, issued and outstanding capital stock of the Company will be
as set forth in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus); no shares of
Common Stock have been or will be issued and outstanding prior to the
Closing Time referred to in Section 2; at the time of Conversion, the
Securities will
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have been duly authorized for issuance and, when issued and delivered
by the Company pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and stated on the
cover page of the Prospectus, will be duly and validly issued and fully
paid and non-assessable; the terms and provisions of the Common Stock
and the capital stock of the Company conform to all statements relating
thereto contained in the Prospectus; the certificates representing the
shares of Common Stock conform to the requirements of applicable law
and regulations; and the issuance of the Securities is not subject to
preemptive or other similar rights.
(xv) The Bank, as of the date hereof, is a federally
chartered stock savings bank with full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Bank and the Bank's subsidiaries have
obtained all licenses, permits and other governmental authorizations
currently required for the conduct of their respective businesses or
required for the conduct of their respective businesses as contemplated
by the Holding Company Application and the Conversion Application,
except where the failure to obtain such licenses, permits or other
governmental authorizations would not have a material adverse effect on
the financial condition, results of operations or business affairs of
the Bank and the Bank's subsidiaries considered as one enterprise; all
such licenses, permits and other governmental authorizations are in
full force and effect and the Bank and its subsidiaries are in all
material respects in compliance therewith; neither the Bank nor any of
the Bank's subsidiaries has received notice of any proceeding or action
relating to the revocation or modification of any such license, permit
or other governmental authorization which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, might
have a material adverse effect on the financial condition, results of
operations or business affairs of the Bank and its subsidiaries,
considered as one enterprise; and the Bank is in good standing under
the laws of the United States and is qualified as a foreign corporation
in any jurisdiction in which the failure to so qualify would have a
material adverse effect on the financial condition, results of
operations or business affairs of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries considered as one enterprise. The Bank does not own equity
securities or any equity interest in any other business enterprise
except as described in the Prospectus or as would not be material to
the operations of the Bank, the Company, the Mutual Holding Company and
the Mid-Tier Holding Company taken as a whole. Upon completion of the
sale by the Company of the Securities contemplated by the Prospectus,
(i) the Bank will continue to be a federally chartered stock savings
bank, (ii) all of the authorized and outstanding capital stock of the
Bank will be owned by the Company, and (iii) the Company will have no
direct subsidiaries other than the Bank. the Conversion will have been
effected in all material respects in accordance with all applicable
statutes, regulations, decisions and orders; and, except with respect
to the filing of certain post-sale, post-Conversion reports, and
documents in compliance with the Securities Act Regulations, the OTS's
resolutions or letters of approval, all terms, conditions,
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requirement and provisions with respect to the Conversion imposed by
the Commission, the OTS, and the FDIC, if any, will have been complied
with by the Company, the Mutual Holding Company, the Mid-Tier Holding
Company and the Bank in all material respects or appropriate waivers
will have been obtained and all material notice and waiting periods
will have been satisfied, waived or elapsed.
(xvi) The Bank is a member of the Federal Home Loan
Bank of Pittsburgh ("FHLB-Pittsburgh"). The deposit accounts of the
Bank are insured by the FDIC up to the applicable limits and upon
consummation of the Conversion, the liquidation account for the benefit
of eligible account holders and supplemental eligible account holders
will be duly established in accordance with the requirements of the
Conversion Regulations. The Bank is a "qualified thrift lender" within
the meaning of 12 U.S.C. Section 1467a(m).
(xvii) Upon consummation of the Conversion, the
authorized capital stock of the Bank will be within the range set forth
in the Prospectus under the caption "Capitalization" and no shares of
Bank Common Stock have been or will be issued prior to the Closing Time
referred to in Section 2; and as of the Closing Time referred to in
Section 2, all of the issued and outstanding capital stock of the Bank
will be duly authorized, validly issued and fully paid and
nonassessable. The shares of Bank Common Stock to be issued to the
Company will have been duly authorized for issuance and, when issued
and delivered by the Bank pursuant to the Plan against payment of the
consideration calculated as set forth in the Plan and as described in
the Prospectus, (including Common Stock exchanged for shares of
outstanding Bank Common Stock held by the Public Stockholders) will be
duly and validly issued and fully paid and nonassessable, and all such
Bank Common Stock will be owned beneficially and of record by the
Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance or legal or equitable claim; the terms and provisions
of the Bank Common Stock and the Bank Preferred Stock conform to all
statements relating thereto contained in the Prospectus, and the
certificates representing the shares of the Bank Common Stock will
conform with the requirements of applicable laws and regulations; and
the issuance of the Bank Common Stock is not subject to preemptive or
similar rights.
(xviii) The Mutual Holding Company has been duly organized
and is a validly existing federally chartered mutual holding company in
good standing and with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and the Mutual Holding
Company is qualified to do business as a foreign corporation in each
jurisdiction in which the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the business, operations or income of the Company, the Bank, The
Mid-Tier Holding Company and the Mutual Holding Company taken as a
whole. The Mutual Holding Company has obtained all material
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licenses, permits and other governmental authorizations currently
required for the conduct of its business; all such licenses, permits
and governmental authorizations are in full force and effect, and the
Mutual Holding Company is in all material respects complying with all
laws, rules, regulations and orders applicable to the operation of its
business.
(xix) The Mid-Tier Holding Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the Commonwealth of Pennsylvania with corporate power
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus and is qualified
to do business in each jurisdiction in which the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the condition,
financial or otherwise, or the business, operations or income to the
Mid-Tier Holding Company, the Company, the Mutual Holding Company and
the Bank taken as a whole. The Mid-Tier Holding Company has obtained
all material licenses, permits and other governmental authorizations
currently required for the conduct of its business; all such licenses,
permits and governmental authorizations are in full force and effect,
and the Mid-Tier Holding Company, in all material respects, is
complying with all laws, rules, regulations and orders applicable to
the operation of its business.
(xx) The Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank have taken all corporate action
necessary for them to execute, deliver and perform this Agreement, and
this Agreement has been duly executed and delivered by, and is the
valid and binding agreement of, the Company, the Mutual Holding
Company, the Mid-Tier Holding Company and the Bank, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency or other laws affecting the enforceability of the rights of
creditors generally and judicial limitations on the right of specific
performance and except as the enforceability of indemnification and
contribution provisions may be limited by applicable securities laws.
The Company, the Mutual Holding Company, the Mid-Tier Holding Company
and the Bank have all such power, authority, authorizations, approvals
and orders as may be required to enter into this Agreement and to issue
and sell the Securities to be sold by the Company as provided herein
and described in the Prospectus.
(xxi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Time, except as otherwise may be indicated or
contemplated therein, none of the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank or any subsidiary of the Bank
will have (A) issued any securities or incurred any liability or
obligation, direct or contingent, or borrowed money, except borrowings
in the ordinary course of business from the same or similar sources and
in similar amounts as indicated in the Prospectus, or (B) entered into
any transaction or series
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of transactions which is material in light of the business of the
Company, the Mutual Holding Company, the Mid-Tier Holding Company, the
Bank and the Bank's subsidiaries, taken as a whole, excluding the
origination, purchase and sale of loans or the purchase or sale of
investment securities or mortgaged-backed securities in the ordinary
course of business.
(xxii) No approval of any regulatory or supervisory
or other public authority is required in connection with the execution
and delivery of this Agreement or the issuance of the Securities that
has not been obtained and a copy of which has been delivered to the
Agent, except as may be required under the securities laws of various
jurisdictions.
(xxiii) None of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank nor any of the Bank's
subsidiaries is in violation of its certificate of incorporation,
organization certificate, articles of incorporation or charter, as the
case may be, or bylaws; and none of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank nor any of the Bank's
subsidiaries is in default (nor has any event occurred which, with
notice or lapse of time or both, would constitute a default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, the
Mutual Holding Company, the Mid-Tier Holding Company, the Bank or any
of the Bank's subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company, the Bank or any
of the Bank's subsidiaries is subject, except for such defaults that
would not, individually or in the aggregate, have a material adverse
effect on the financial condition, results of operations or business of
the Company, the Mutual Holding Company, the Mid-Tier Holding Company,
the Bank and the Bank's subsidiaries considered as one enterprise; and
there are no contracts or documents of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank or any of the Bank's
subsidiaries that are required to be filed as exhibits to the
Registration Statement or the Conversion Application which have not
been so filed.
(xxiv) The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate action and
do not and will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company, the Bank or any of the
Bank's subsidiaries pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company, the
Mutual Holding Company, the Mid-Tier Holding Company, the Bank or any
of the Bank's subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets
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of the Company, the Mutual Holding Company, the Mid-Tier Holding
Company or the Bank or any of the Bank's subsidiaries is subject,
except for such defaults that would not, individually or in the
aggregate, have a material adverse effect on the financial condition,
results of operations or business affairs of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries considered as one enterprise; nor will such action result
in any violation of the provisions of certificate of incorporation,
organization certificate, articles of incorporation or charter or
by-laws of the Company, the Mutual Holding Company, the Mid-Tier
Holding Company, the Bank or any of the Bank's subsidiaries, or any
applicable law, administrative regulation or administrative or court
decree.
(xxv) No labor dispute with the employees of the
Company, the Mutual Holding Company, the Mid-Tier Holding Company or
the Bank or any of the Bank's subsidiaries exists or, to the knowledge
of the Company the Mutual Holding Company, the Mid-Tier Holding
Company, or the Bank, is imminent or threatened; and the Company, the
Mutual Holding Company, the Mid-Tier Holding Company and the Bank are
not aware of any existing or threatened labor disturbance by the
employees of any of their principal suppliers or contractors which
might be expected to result in any material adverse change in the
financial condition, results of operations or business affairs of the
Company, the Mutual Holding Company, the Mid-Tier Holding Company, the
Bank and the Bank's subsidiaries considered as one enterprise.
(xxvi) Each of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries have good and marketable title to all properties and
assets for which ownership is material to the business of the Company,
the Mutual Holding Company, the Mid-Tier Holding Company, the Bank or
the Bank's subsidiaries and to those properties and assets described in
the Prospectus as owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the
Prospectus or are not material in relation to the business of the
Company, the Mutual Holding Company, the Mid-Tier Holding Company, the
Bank or the Bank's subsidiaries considered as one enterprise; and all
of the leases and subleases material to the business of the Company,
the Bank or the Bank's subsidiaries under which the Company, the Bank
or the Bank's subsidiaries hold properties, including those described
in the Prospectus, are valid and binding agreements of the Company, the
Bank and the Bank's subsidiaries, enforceable in accordance with their
terms.
(xxvii) None of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank nor the Bank's
subsidiaries are in violation of any directive from the OTS or the FDIC
to make any material change in the method of conducting their
respective businesses; the Bank and its subsidiaries have conducted and
are conducting their business so as to comply in all material respects
with all applicable statutes, regulations and administrative and court
decrees
12
(including, without limitation, all regulations, decisions, directives
and orders of the OTS or the FDIC).
(xxviii) There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company or the Bank,
threatened, against or affecting the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank or any of the Bank's
subsidiaries is required to be disclosed in the Registration Statement
(other than as disclosed therein), or that might result in any material
adverse change in the financial condition, results of operations or
business affairs of the Company, the Mutual Holding Company, the
Mid-Tier Holding Company, the Bank and the Bank's subsidiaries
considered as one enterprise, or that might materially and adversely
affect the properties or assets thereof or that might materially and
adversely affect the consummation of the Conversion; all pending legal
or governmental proceedings to which the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank or any of the Bank's
subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, are considered in the aggregate not material; and there are
no contracts or documents of the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank or any of the Bank's
subsidiaries which are required to be filed as exhibits to the
Registration Statement or the Conversion Application which have not
been so filed.
(xxix) The Company, the Mutual Company, the Mid-Tier
Holding Company, the Bank have obtained an opinion of their special
counsel, Xxxxxxx, Spidi, Xxxxx & Xxxxx, P.C. ("Xxxxxxx, Spidi"), with
respect to the federal and Pennsylvania income tax consequences of the
Conversion, the acquisition of the Bank's capital stock by the Company
and their legality of the Securities to be issued as described in the
Registration Statement and the Prospectus; all material aspects of the
opinions of Xxxxxxx, Spidi are summarized accurately in the Prospectus
and the facts and representations upon which such opinions are based
are truthful, accurate and complete.
(xxx) The Company is not required to be registered
under the Investment Company Act of 1940, as amended.
(xxxi) All of the loans represented as assets on the
most recent consolidated financial statements or consolidated selected
financial information of the Bank included in the Prospectus meet or
are exempt from all requirements of federal, state or local law
pertaining to lending, including without limitation truth in lending
(including the requirements of Regulations Z and 12 C.F.R. Part 226 and
Section 563.99), real estate settlement procedures, consumer credit
protection, equal credit opportunity and all disclosure laws applicable
to such loans, except for
13
violations which, if asserted, would not result in a material adverse
effect on the financial condition, results of operations or business of
the Company, the Bank and the Bank's subsidiaries considered as one
enterprise.
(xxxii) To the knowledge of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company and the Bank, with the
exception of the intended loan to the Bank's ESOP by the Company to
enable the ESOP to purchase shares of Common Stock in an amount of up
to 8.0% of the Common Stock issued in the Conversion, none of the
Company, the Mutual Holding Company, the Mid-Tier Holding Company, the
Bank or employees of the Company, the Mutual Holding Company, the
Mid-Tier Holding Company, and/or the Bank has made any payment of funds
of the Company, the Mutual Holding Company, the Mid-Tier Holding
Company or the Bank as a loan for the purchase of the Common Stock or
made any other payment of funds prohibited by law, and no funds have
been set aside to be used for any payment prohibited by law.
(xxxiii) The Company, the Mutual Holding Company, the
Mid-Tier Holding Company, the Bank and its subsidiaries are in
compliance in all material respects with the applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transaction Reporting Act of 1970, as amended, and the rules and
regulations thereunder.
(xxxiv) None of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank nor the Bank's
subsidiaries nor any properties owned or operated by the Company, the
Mutual Holding Company, the Mid-Tier Holding Company, the Bank or the
Bank's subsidiaries is in violation of or liable under any
Environmental Law (as defined below), except for such violations or
liabilities that, individually or in the aggregate, would not have a
material adverse effect on the financial condition, results of
operations or business affairs of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries considered as one enterprise. There are no actions, suits
or proceedings, or demands, claims, notices or investigations
(including, without limitation, notices, demand letters or requests for
information from any environmental agency) instituted or pending, or to
the knowledge of the Company, the Mutual Holding Company, the Mid-Tier
Holding Company, or the Bank or the Bank's subsidiaries threatened,
relating to the liability of any property owned or operated by the
Company, the Mutual Holding Company, the Mid-Tier Holding Company, the
Bank or the Bank's subsidiaries, under any Environmental Law. For
purposes of this subsection, the term "Environmental Law" means any
federal, state, local or foreign law, statute, ordinance, rule,
regulation, code, license, permit, authorization, approval, consent,
order, judgment, decree, injunction or agreement with any regulatory
authority relating to (i) the protection, preservation or restoration
of the environment (including, without limitation, air, water, vapor,
surface water, groundwater, drinking water supply, surface soil,
subsurface soil, plant and animal life
14
or any other natural resource), and/or (ii) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of any substance presently
listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, whether by type or by
quantity, including any material containing any such substance as a
component.
(xxxv) The Company, the Mutual Holding Company, the
Mid-Tier Holding Company, the Bank and the Bank's subsidiaries have
timely filed all required federal, state and local tax returns and have
made timely payments of all taxes shown as due and payable in respect
of such returns, except where permitted to be extended, have made
adequate reserves for similar future tax liabilities and no deficiency
has been asserted with respect thereto by any taxing authority.
(xxxvi) The Company has received approval, subject to
regulatory approval to consummate the Offerings and issuance, to have
the Securities quoted on the National Market System of the National
Association of Securities Dealers' Automated Quotation System ("Nasdaq
National Market") under the symbol "_____", effective as of the Closing
Time referred to in Section 2 hereof.
(xxxvii) No approval of any regulatory or supervisory
or other public authority is required in connection with the execution
and delivery of this Agreement or the issuance of the Securities,
except for the approval of the Commission, the OTS, and any necessary
qualification, notification, registration or exemption under the
securities or blue sky laws of the various states in which the
Securities are to be offered, and except as may be required under the
rules and regulations of the Nasdaq National Market.
(xxxvii) The Company has filed a registration
statement for the Common Stock under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and has requested
that such registration statement be effective concurrent with the
effectiveness of the Registration Statement.
(xxxvix) The Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank have not relied upon the Agent or
its legal counsel or other advisors for any legal, tax or accounting
advice in connection with the Conversion.
(b) Any certificate signed by any officer of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company or the Bank pursuant to the
conditions of this Agreement and delivered to the Agent or the counsel for the
Agent that refers to this Agreement shall be deemed a representation and
warranty by the Company, the Mutual Holding Company, the Mid-Tier Holding
Company or the Bank to the Agent as to the matters covered thereby with the same
effect as if such representation and warranty were set forth therein.
15
SECTION 2. APPOINTMENT OF SANDLER X'XXXXX; SALE AND DELIVERY OF
THE SECURITIES; CLOSING.
On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby appoints Sandler X'Xxxxx as its Agent to consult with and advise the
Company, and to assist the Company with the solicitation of subscriptions and
purchase orders for Securities, in connection with the Company's sale of Common
Stock in the Subscription and Community Offering and the Syndicated Community
Offering. On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, Sandler X'Xxxxx
accepts such appointment and agrees to use its best efforts to assist the
Company with the solicitation of subscriptions and purchase orders for
Securities in accordance with this Agreement; provided, however, that the Agent
shall not be obligated to take any action which is inconsistent with any
applicable laws, regulations, decisions or orders. The services to be rendered
by Sandler X'Xxxxx pursuant to this appointment include the following: (i)
consulting as to the securities marketing implications of any aspect of the Plan
of Conversion or related corporate documents; (ii) reviewing with the Board of
Directors the independent appraiser's appraisal of the common stock,
particularly with regard to aspects of the appraisal involving the methodology
employed; (iii) reviewing all offering documents, including the Prospectus,
stock order forms and related offering materials (it being understood that
preparation and filing of such documents is the sole responsibility of the
Company and the Bank and their counsel); (iv) assisting in the design and
implementation of a marketing strategy for the Offerings; (v) assisting in
obtaining all requisite regulatory approvals; (vi) assisting Bank management in
preparing for meetings with potential investors and broker-dealers; and (vii)
providing such other general advice and assistance as may be requested to
promote the successful completion of the Conversion.
If the Conversion is consummated, the appointment of the Agent
hereunder shall terminate one (1) year after the last day of the Subscription
and Community Offering, unless the Company requests earlier termination.
Thereafter, if the Agent and the Company both wish to continue the relationship,
the parties will enter into a separate advisory services agreement on terms and
conditions to be negotiated at such time. Notwithstanding the above, the Bank
and the Company are under no obligation to receive or request such services.
If any of the Securities remain available after the expiration
of the Subscription Offering and the Community Offering, at the request of the
Bank, Sandler X'Xxxxx will seek to form a syndicate of registered broker or
dealers ("Selected Dealers") to assist in the solicitation of purchase orders of
such Securities on a best-efforts basis, subject to the terms and conditions set
forth in a selected dealers' agreement (the "Selected Dealers' Agreement"),
substantially in the form set forth in Exhibit A to this Agreement. Sandler
X'Xxxxx will endeavor to limit the aggregate fees to be paid by the Bank under
any such Selected Dealers' Agreement to an amount competitive with gross
underwriting discounts charged at such time for underwritings of comparable
amounts of stock sold at a comparable
16
price per share in a similar market environment; provided, however, that the
aggregate fees payable to Xxxxxx X'Xxxxx and Selected Dealers shall not exceed
6.5% of the aggregate Actual Purchase Price (as defined in the Prospectus) of
the Securities sold by such Selected Dealers. Xxxxxx X'Xxxxx will endeavor to
distribute the Securities among the Selected Dealers in a fashion which best
meets the distribution objective of the Bank and the requirements of the Plan,
which may result in limiting the allocation of stock to certain Selected
Dealers. It is understood that in no event shall Sandler X'Xxxxx be obligated to
act as a Selected Dealer or to take or purchase any Securities.
In the event the Company is unable to sell at least the total
minimum of the Securities, as set forth on the cover page of the Prospectus,
within the period herein provided, this Agreement shall terminate and the
Company shall refund to any persons who have subscribed for any of the
Securities the full amount which it may have received from them, together with
interest as provided in the Prospectus, and no party to this Agreement shall
have any obligation to the others hereunder, except for the obligations of the
Company and the Bank as set forth in Sections 4, 6(a) and 7 hereof and the
obligations of the Agent as provided in Sections 6(b) and 7 hereof. Appropriate
arrangements for placing the funds received from subscriptions for Securities or
other offers to purchase Securities in special interest-bearing accounts with
the Bank until all Securities are sold and paid for were made prior to the
commencement of the Subscription Offering, with provision for refund to the
purchasers as set forth above, or for delivery to the Company if all Securities
are sold.
If at least the total minimum of Securities, as set forth on
the cover page of the Prospectus, are sold, the Company agrees to issue or have
issued the Securities sold and to release for delivery certificates for such
Securities at the Closing Time against payment therefor by release of funds from
the special interest-bearing accounts referred to above. The closing shall be
held at the __________ offices of _________________________, at 10:00 a.m.,
local time, or at such other place and time as shall be agreed upon by the
parties hereto, on a business day to be agreed upon by the parties hereto. The
Company shall notify the Agent by telephone, confirmed in writing, when funds
shall have been received for all the Securities. Certificates for Securities
shall be delivered directly to the purchasers thereof in accordance with their
directions. Notwithstanding the foregoing, certificates for Securities purchased
through Selected Dealers shall be made available to the Agent for inspection at
least 48 hours prior to the Closing Time at such office as the Agent shall
designate. The hour and date upon which the Company shall release for delivery
all of the Securities, in accordance with the terms hereof, is herein called the
"Closing Time."
The Company will pay any stock issue and transfer taxes which
may be payable with respect to the sale of the Securities.
In addition to reimbursement of the expenses specified in
Section 4 hereof, the Agent will receive the following compensation for its
services hereunder:
17
(a) A fee of one and one-quarter percent (1.25%) of the
aggregate Actual Purchase Price of the Securities sold in the
Subscription Offering and the Community Offering, excluding in each
case shares purchased by (i) any employee benefit plan of the Company
or the Bank established for the benefit of their respective directors,
officers and employees, and (ii) any director, officer or employee of
the Company or the Bank or members of their immediate families (which
term shall mean parents, grandparents, spouse, siblings, children and
grandchildren); and
(b) with respect to any Securities sold by an NASD member firm
(other than Sandler X'Xxxxx) under the Selected Dealers' Agreement in
the Syndicated Community Offering, (i) the sales commission payable to
Selected Dealers under any such Selected Dealers' Agreement, (ii) any
sponsoring dealer's fees; and (iii) a management fee to Sandler X'Xxxxx
of one and one-quarter percent (1.25%) of the Actual Purchase Price.
Any fees payable to Sandler X'Xxxxx for Securities sold by Sandler
X'Xxxxx under any such agreement shall be limited to an aggregate of
one and one-quarter percent (1.25%) of the Actual Purchase Price of
such Securities.
If this Agreement is terminated by the Agent in accordance
with the provisions of Section 9(a) hereof or the Conversion is terminated by
the Company, no fee shall be payable by the Company to Sandler X'Xxxxx; however,
the Company shall reimburse the Agent for all of its reasonable out-of-pocket
expenses incurred prior to termination, including the reasonable fees and
disbursements of counsel for the Agent in accordance with the provisions of
Section 4 hereof.
All fees payable to the Agent hereunder shall be payable in
immediately available funds at Closing Time, or upon the termination of this
Agreement, as the case may be. In recognition of the long lead times involved in
the conversion process, the Bank agrees to make advance payments to the Agent in
the aggregate amount of $50,000, $25,000 of which has been previously paid and
the remaining $25,000 of which shall be payable upon commencement of the
Subscription Offering, which shall be credited against any fees or reimbursement
of expenses payable hereunder.
SECTION 3. COVENANTS OF THE COMPANY, THE MUTUAL HOLDING
COMPANY, THE MID-TIER HOLDING COMPANY AND THE BANK. The Company, the Mutual
Holding Company, the Mid-Tier Holding Company and the Bank covenant with the
Agent as follows:
(a) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will prepare and file such amendments or
supplements to the Registration Statement, the Prospectus, the
Conversion Application and the Proxy Statement as may hereafter be
required by the Securities Act Regulations or the Conversion
Regulations or as may hereafter be requested by the Agent. Following
completion of the Subscription and Community Offering, in the event of
a Syndicated Community Offering, the Company, the Mutual Holding
Company, the Mid-Tier
18
Holding Company and the Bank will (i) promptly prepare and file with
the Commission a post-effective amendment to the Registration Statement
relating to the results of the Subscription and Community Offerings,
any additional information with respect to the proposed plan of
distribution, and any revised pricing information or (ii) if no such
post-effective amendment is required, will file with, or mail for
filing to, the Commission a prospectus or prospectus supplement
containing information relating to the results of the Subscription and
Community Offering and pricing information pursuant to Rule 424 of the
Securities Act Regulations, in either case in a form acceptable to the
Agent and the Agent's counsel. The Company, the Mutual Holding Company,
the Mid-Tier Holding Company and the Bank will notify the Agent
immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment of the Registration
Statement, the filing of any supplement to the Prospectus and the
filing of any amendment to the Conversion Application, (ii) of the
receipt of any comments from the OTS or the Commission with respect to
the transactions contemplated by this Agreement or the Plan, (iii) of
any request by the Commission, the OTS, the FDIC or any other
governmental entity for any amendment to the Registration Statement or
the Conversion Application or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the
Commission, the OTS, the FDIC or any other governmental entity of any
order suspending the Offerings or the use of the Prospectus or the
initiation of any proceedings for that purpose, (v) of the issuance by
the Commission, the OTS, the FDIC or any other governmental entity of
any stop-order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, and
(vi) of the receipt of any notice with respect to the suspension of any
qualification of the Securities for offering or sale in any
jurisdiction. The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will make every reasonable effort to
prevent the issuance of any stop-order and, if any stop-order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will give the Agent notice of its
intention to file or prepare any amendment to the Conversion
Application or Registration Statement (including any post-effective
amendment) or any amendment or supplement to the Prospectus (including
any revised prospectus which the Company proposes for use in connection
with the Syndicated Community Offering of the Securities which differs
from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the
Securities Act Regulations), will furnish the Agent with copies of any
such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the Agent
or counsel for the Agent may object.
19
(c) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will deliver to the Agent as many signed
copies and as many conformed copies of the Conversion Application and
the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein) as the Agent may reasonably request for the purposes
contemplated by the Securities Act Regulations, the 1934 Securities and
Exchange Act, as amended (the "Exchange Act") or the rules and
regulations promulgated under the Exchange Act, and from time to time
such number of copies of the Prospectus as the Agent may reasonably
request for use in any lawful manner contemplated by the Plan.
(d) During the period when the Prospectus is required to be
delivered, the Company the Mutual Holding Company, the Mid-Tier Holding
Company and the Bank will comply, at their own expense, with any and
all requirements, material terms, conditions and provisions imposed
upon them by the Commission, the FDIC, the OTS, or by the applicable
Conversion Regulations, as from time to time in force, and by the
Securities Act, the Securities Act Regulations, Exchange Act, and the
rules and regulations of the Commission promulgated thereunder,
including, without limitation, Regulation M under the Exchange Act, in
each case as from time to time enforced, so far as necessary to permit
the continuance of sales or dealing in shares of Common Stock during
such period in accordance with the provisions hereof and the
Prospectus.
(e) If any event or circumstance shall occur as a result of
which it is necessary, in the opinion of counsel for the Company, the
Mutual Holding Company, the Mid-Tier Holding Company or the Bank or in
the reasonable opinion of counsel for the Agent, to amend or supplement
the Prospectus or Registration Statement in order to make the
Prospectus or Registration Statement not misleading in the light of the
circumstances existing at the time such document is delivered to a
purchaser, the Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will, at their expense, forthwith amend or
supplement the Prospectus or Registration Statement (in form and
substance satisfactory to counsel for the Agent after a reasonable time
for review) so that, as so amended or supplemented, the Prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Company, the Mutual Holding Company,
the Mid-Tier Holding Company and the Bank will furnish to the Agent a
reasonable number of copies of such amendment or supplement. For the
purpose of this Agreement, the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank each will timely furnish such
information with respect to itself to the Agent as the Agent may from
time to time reasonably request.
20
(f) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will take all necessary actions, in
cooperation with the Agent, and will furnish to whomever the Agent may
direct, such information as may be required to qualify or register the
Securities for offering and sale or to exempt such Securities from
registration, or to exempt the Company as a broker-dealer and its
officers, directors and employees as broker-dealers or agents under the
applicable securities laws of such states of the United States and
other jurisdictions as the Conversion Regulations may require and as
the Agent and the Company have agreed; provided, however, that the
Company and the Bank shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. In each jurisdiction in
which the Securities have been so qualified, the Company and the Bank
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the Registration
Statement.
(g) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will not sell or issue, contract to sell
or otherwise dispose of, for a period of 90 days after Closing Time,
without the Agent's prior written consent, any shares of Common Stock
other than the Securities or other than in connection with any plan or
arrangement described in the Prospectus, including existing stock
benefit plans.
(h) The Company shall register its Common Stock under Section
12(g) of the Exchange Act concurrent with the Offerings pursuant to the
Plan and shall request that such registration be effective upon
completion of the Conversion.
(i) The Company authorizes Sandler X'Xxxxx and any Selected
Dealers to act as agent of the Company in distributing the Prospectus
to persons entitled to receive subscription rights and other persons to
be offered Securities having record addresses in the states or
jurisdictions set forth in a survey of the securities or "blue sky"
laws of the various jurisdictions in which the Offerings will be made
(the "Blue Sky Survey").
(j) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the Securities Act
Regulations) covering a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration
Statement.
(k) During the period ending on the third anniversary of the
expiration of the fiscal year during which the closing of the
transactions contemplated hereby occurs, the Company will furnish to
its stockholders as soon as practicable after the
21
end of each such fiscal year an annual report of the Company (including
consolidated statements of financial condition and consolidated
statements of income, stockholders' equity and cash flows, certified by
independent public accountants in accordance with Regulation S-X under
the Securities Act) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company,
the Mutual Holding Company, the Mid-Tier Holding Company, the Bank and
the Bank's subsidiaries for such quarter in reasonable detail. In
addition, such annual report and quarterly consolidated summary
financial information shall be made public through the issuance of
appropriate press releases at the same time or prior to the time of the
furnishing thereof to stockholders of the Company.
(l) During the period ending on the third anniversary of the
expiration of the fiscal year during which the closing of the
transactions contemplated hereby occurs, the Company will furnish to
the Agent (i) as soon as publicly available, a copy of each report or
other document of the Company furnished generally to stockholders of
the Company or furnished to or filed with the Commission under the
Exchange Act or any national securities exchange or system on which any
class of securities of the Company is listed (including, but not
limited to, reports on Form 10-K, 10-Q and 8-K and all proxy statements
and annual reports to stockholders), (ii) a copy of each other
nonconfidential report of the Company mailed to its stockholders or
filed with the Commission, the OTS or any other supervisory or
regulatory authority or any national securities exchange or system on
which any class of Securities of the Company is listed or quoted, each
press release and material news items and additional documents and
information with respect to the Company, the Mutual Holding Company,
the Mid-Tier Holding Company or the Bank as the Agent may reasonably
request; and (iii) from time to time, such other information concerning
the Company as the Agent may reasonably request.
(m) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank will conduct the Conversion in all
material respects in accordance with the Plan, the Conversion
Regulations and all other applicable regulations, decisions and orders,
including all applicable terms, requirements and conditions precedent
to the Conversion imposed upon the Company or the Bank by the OTS.
(n) The Company and the Bank will use the net proceeds from
the sale of the Securities in the manner specified in the Prospectus
under the caption "Use of Proceeds."
(o) The Company will file with the Commission such reports on
Form SR as may be required pursuant to Rule 463 of the Securities Act
Regulations, if such report or substantially similar report is required
by the Commission.
22
(p) The Company will maintain the effectiveness of the
Exchange Act Registration Statement for not less than three years. The
Company will file with the Nasdaq Stock Market all documents and
notices required by the Nasdaq Stock Market of companies that have
issued securities that are traded in the over-the-counter market and
quotations for which are reported by the Nasdaq National Market.
(q) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company or the Bank will take such actions and furnish such
information as are reasonably requested by the Agent in order for the
Agent to ensure compliance with the National Association of Securities
Dealers, Inc.'s "Interpretation Relating to Free- Riding and
Withholding."
(r) Other than in connection with any employee benefit plan or
arrangement described in the Prospectus, the Company will not, without
the prior written consent of the Agent, sell or issue, contract to sell
or otherwise dispose of, any shares of Common Stock other than the
Securities for a period of 180 days following the Closing Time.
(s) During the period beginning on the date hereof and ending
on the later of the third anniversary of the Closing Time or the date
on which the Agent receives full payment in satisfaction of any claim
for indemnification or contribution to which it may be entitled
pursuant to Sections 6 or 7, respectively, neither the Company nor the
Bank shall, without the prior written consent of the Agent, which
consent shall not be unreasonably withheld, take or permit to be taken
any action that could result in the Bank Common Stock becoming subject
to any security interest, mortgage, pledge, lien or encumbrance;
provided, however, that this covenant shall be null and void if the
Board of Governors of the Federal Reserve System, by regulation, policy
statement or interpretive release, or by written order or written
advice addressed to the Bank or the Agent specifically addressing the
provisions of Section 6(a) hereof, permits indemnification of the Agent
by the Bank as contemplated by such provisions.
(t) The Company and the Bank will comply with the conditions
imposed by or agreed to with the OTS in connection with its approval of
the Holding Company Application and with the FDIC in connection with
their approval or non- objection of, or non-objection to, the
Conversion Application.
(u) During the period ending on the first anniversary of the
Closing Time, the Bank will comply with all applicable law and
regulation necessary for the Bank to continue to be a "qualified thrift
lender" within the meaning of 12 U.S.C. Section 1467a(m).
23
(v) The Company shall not deliver the Securities until the
Company and the Bank have satisfied each condition set forth in Section
5 hereof, unless such condition is waived by the Agent.
(w) The Company or the Bank will furnish to Sandler X'Xxxxx as
early as practicable prior to the Closing Time, but no later than two
(2) full business days prior thereto, a copy of the latest available
unaudited interim consolidated financial statements of the Bank and the
Subsidiaries which have been read by FinPro, as stated in their letters
to be furnished pursuant to subsections (e) and (f) of Section 5
hereof.
(x) Other than as permitted by the Conversion Regulations, the
HOLA, the Securities Act, the Securities Act Regulations, and the laws
of any state in which the Securities are registered or qualified for
sale or exempt from registration, none of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company or the Bank will
distribute any prospectus, offering circular or other offering material
in connection with the offer and sale of the Securities.
(y) The Company will use its best efforts to (i) encourage and
assist a market maker to establish and maintain a market for the
Securities and (ii) list and maintain quotation of the Securities on a
national or regional securities exchange or on the Nasdaq National
Market effective on or prior to Closing Time.
(z) The Bank will maintain appropriate arrangements for
depositing all funds received from persons mailing subscriptions for or
orders to purchase Securities in the Offering on an interest-bearing
basis at the rate described in the Prospectus until Closing Time and
satisfaction of all conditions precedent to the release of the Bank's
obligation to refund payments received from persons subscribing for or
ordering Securities in the Offering in accordance with the Plan and as
described in the Prospectus or until refunds of such funds have been
made to the persons entitled thereto or withdrawal authorizations
canceled in accordance with the Plan and as described in the
Prospectus. The Bank will maintain such records of all funds received
to permit the funds of each subscriber to be separately insured by the
FDIC (to the maximum extent allowable) and to enable the Bank to make
the appropriate refunds of such funds in the event that such refunds
are required to be made in accordance with the Plan and as described in
the Prospectus.
(aa) The Company will promptly take all necessary action to
register as a savings and loan holding company under the HOLA.
(bb) None of the Company, Mutual Holding Company, Mid-Tier
Holding Company or Bank will amend the Plan of Conversion without
notifying the Agent prior thereto.
24
(cc) The Company shall assist the Agent, if necessary, in
connection with the allocation of the Securities in the event of an
oversubscription and shall provide the Agent with any information
necessary to assist the Company in allocating the Securities in such
event and such information shall be accurate and reliable.
(dd) Prior to Closing Time, the Company, the Mutual Holding
Company, the Mid-Tier Holding Company and the Bank will inform the
Agent of any event or circumstances of which it is aware as a result of
which the Registration Statement and/or Prospectus, as then amended or
supplemented, would contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading.
SECTION 4. PAYMENT OF EXPENSES. The Company, the Mutual
Holding Company, the Mid-Tier Holding Company and the Bank jointly and severally
agree to pay all expenses incident to the performance of their obligations under
this Agreement, including but not limited to (i) the cost of obtaining all
securities and bank regulatory approvals, (ii) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (iii)
the preparation, issuance and delivery of the certificates for the Securities to
the purchasers in the Offerings, (iv) the fees and disbursements of the
Company's, the Mutual Holding Company's, the Mid-Tier Holding Company's and the
Bank's counsel, accountants, appraiser and other advisors, (v) the qualification
of the Securities under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the fees and disbursements of
counsel in connection therewith and in connection with the preparation of the
Blue Sky Survey, (vi) the printing and delivery to the Agent of copies of the
Registration Statement as originally filed and of each amendment thereto and the
printing and delivery of the Prospectus and any amendments or supplements
thereto to the purchasers in the Offerings and the Agent, (vii) the printing and
delivery to the Agent of copies of a Blue Sky Survey, and (viii) the fees and
expenses incurred in connection with the listing of the Securities on the Nasdaq
National Market. In the event the Agent incurs any such fees and expenses on
behalf of the Bank or the Company, the Bank will reimburse the Agent for such
fees and expenses whether or not the Conversion is consummated; provided,
however, that the Agent shall not incur any substantial expenses on behalf of
the Bank or the Company pursuant to this Section without the prior approval of
the Bank.
The Company, the Mutual Holding Company, the Mid-Tier Holding Company
and the Bank jointly and severally agree to pay certain expenses incident to the
performance of the Agent's obligations under this Agreement, regardless of
whether the Conversion is consummated up to a maximum of $40,000, including (i)
the filing fees paid or incurred by the Agent in connection with all filings
with the National Association of Securities Dealers, Inc., and (ii) all
reasonable out-of-pocket expenses incurred by the Agent relating to the
Offerings, including, without limitation, advertising, promotional, syndication
and travel expenses and fees and expenses of the Agent's counsel. All fees and
expenses to which the Agent is entitled to reimbursement under this paragraph of
this Section 4 shall be due and
25
payable upon receipt by the Company or the Bank of a written accounting therefor
setting forth in reasonable detail the expenses incurred by the Agent.
SECTION 5. CONDITIONS OF AGENT'S OBLIGATIONS. The Company, the
Mutual Holding Company, the Mid-Tier Holding Company, the Bank and the Agent
agree that the issuance and the sale of Securities and all obligations of the
Agent hereunder are subject to the accuracy of the representations and
warranties of the Company, the Mutual Holding Company, the Mid-Tier Holding
Company and the Bank herein contained as of the date hereof and the Closing
Time, to the accuracy of the statements of officers and directors of the
Company, the Mutual Holding Company, the Mid-Tier Holding Company and the Bank
made pursuant to the provisions hereof, to the performance by the Company, the
Mutual Holding Company, the Mid-Tier Holding Company and the Bank of their
obligations hereunder, and to the following further conditions:
(a) At Closing Time, the Company, the Mutual Holding Company,
the Mid-Tier Holding Company and the Bank shall have conducted
the Conversion in all material respects in accordance with the
Plan, the Conversion Regulations, and all other applicable
laws, regulations, decisions and orders, including all terms,
conditions, requirements and provisions precedent to the
Conversion imposed upon them by the OTS.
(b) The Registration Statement shall have been declared
effective by the Commission and the Conversion Application
approved by the OTS not later than 5:30 p.m. on the date of
this Agreement, or with the Agent's consent at a later time
and date; and at Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefore initiated
or threatened by the Commission or any state authority, and no
order or other action suspending the authorization of the
Prospectus or the consummation of the Conversion shall have
been issued or proceedings therefore initiated or, to the
Company's, the Mutual Holding Company's, the Mid-Tier Holding
Company's or the Bank's knowledge, threatened by the
Commission, the OTS, the FDIC, or any state authority.
(c) At Closing Time, the Agent shall have received:
(1) The favorable opinion, dated as of Closing Time
and addressed to the Agent for its benefit, of Xxxxxxx, Spidi,
counsel for the Company and the Bank, in form and substance
satisfactory to counsel for the Agent, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the Commonwealth of
Pennsylvania.
26
(ii) The Company has full corporate power
and authority to own, lease and operate its
properties and to conduct its business as described
in the Registration Statement and Prospectus and to
enter into and perform its obligations under this
Agreement.
(iii) The Company is duly qualified as a
foreign corporation to transact business and is in
good standing in each other jurisdiction in which
such qualification is required whether by reason of
the ownership or leasing of property or the conduct
of business, except where the failure to so qualify
would not have a material adverse effect upon the
financial condition, results of operations or
business affairs of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank and
the Bank's subsidiaries, considered as one
enterprise.
(iv) Upon consummation of the Conversion,
the authorized, issued and outstanding capital stock
of the Company will be within the range set forth in
the Prospectus under the caption "Capitalization" and
no shares of Common Stock have been or will be issued
and outstanding prior to the Closing Time.
(v) The Securities have been duly and
validly authorized for issuance and sale and, when
issued and delivered by the Company pursuant to the
Plan against payment of the consideration calculated
as set forth in the Plan, will be duly and validly
issued and fully paid and non-assessable.
(vi) The issuance of the Securities is not
subject to preemptive or other similar rights arising
by operation of law or, to the best of their
knowledge and information, otherwise. To such
counsel's knowledge, upon the issuance of the
Securities, good title to the Securities (including
the Exchange Securities) will be transferred by the
Company to the purchasers thereof against payment
therefor, subject to such claims as may be asserted
against purchasers thereof by third-party claimants.
(vii) The Bank at all times since December
31, 1992 and prior to the Closing Time has been duly
organized, and is validly existing and in good
standing under the laws of the United States of
America as a federally chartered stock savings bank
with full corporate power and authority to own, lease
and operate its properties and to conduct its
business as described in the Registration Statement
and the Prospectus; and the Bank is duly qualified as
a foreign corporation in each jurisdiction in which
the failure to so qualify would have a
27
material adverse effect upon the financial condition,
results of operations or business affairs of the
Bank.
(viii) The Bank is a member in good standing
of the FHLB- Pittsburgh and the deposit accounts of
the Bank are insured by the FDIC up to the applicable
limits.
(ix) Each direct and indirect subsidiary of
the Bank has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has
full corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Registration Statement and
Prospectus and is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect upon
the financial condition, results of operations or
business of the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries, taken as a whole; the activities of
each such subsidiary are permitted to subsidiaries of
a savings association holding company and of a
federally chartered savings bank by the rules,
regulations, resolutions and practices of the OTS;
all of the issued and outstanding capital stock of
each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and
is owned by the Bank, directly or through
subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim
or equity. To the best of such counsel's knowledge,
each subsidiary holds all licenses, certificates and
permits from governmental authorities currently
required under the laws of its respective
jurisdiction of incorporation for the conduct of its
business as described in the Prospectus except where
the failure to hold such licenses, certificates or
permits would not have a material adverse effect on
the business, assets or financial condition of the
Bank on a consolidated basis; and such subsidiaries
are not in material violation of their certificates
of incorporation or bylaws. All of the outstanding
stock of the subsidiaries has been duly authorized
and is validly issued, fully paid and nonassessable,
and all such stock is owned directly by the Bank,
free and clear of any liens, encumbrances, claims or
other restrictions.
(x) The Mutual Holding Company is a validly
existing federally chartered mutual holding company
with corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Registration Statement and
Prospectus.
28
(xi) The Mid-Tier Holding Company is a duly
incorporated and validly existing Pennsylvania
corporation with corporate power and authority to
own, lease and operate its properties and to conduct
its business as described in the Registration
Statement and Prospectus.
(xii) Upon consummation of the Conversion,
all of the issued and outstanding capital stock of
the Bank when issued and delivered pursuant to the
Plan against payment of consideration calculated as
set forth in the Plan and set forth in the
Prospectus, will be duly authorized and validly
issued and fully paid and nonassessable, and all such
capital stock will be owned beneficially and of
record by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(xiii) The OTS has duly approved the Holding
Company Application and the Conversion Applications
and no action is pending, or to the best of such
counsel's knowledge, threatened respecting the
Holding Company Application or the Conversion
Applications or the acquisition by the Company of all
of the Bank's issued and outstanding capital stock;
the Holding Company Application and the Conversion
Applications comply with the applicable requirements
of the OTS, include all documents required to be
filed as exhibits thereto, and are, to the best of
such counsel's knowledge and information, truthful,
accurate and complete; and the Company is duly
authorized to become a savings association holding
company and is duly authorized to own all of the
issued and outstanding capital stock of the Bank to
be issued pursuant to the Plan.
(xiv) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby have been duly and validly
authorized by all necessary action on the part of
each of the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank, and this
Agreement constitutes a legal, valid and binding
agreement of each of the Company, the Mutual Holding
Company, the Mid-Tier Holding Company and the Bank,
enforceable in accordance with its terms, except as
rights to indemnity and contribution hereunder may be
limited under applicable law (it being understood
that such counsel may avail itself of customary
exceptions concerning the effect of bankruptcy,
insolvency or similar laws and the availability of
equitable remedies); the execution and delivery of
this Agreement, the incurrence of the obligations
herein set forth and the consummation of the
transactions contemplated herein will not result in
any violation of the provisions of the charter or
by-laws of the Company, the Mutual Holding Company,
the Mid-Tier Holding
29
Company, the Bank or any of the Bank's subsidiaries;
and, to the best of such counsel's knowledge, the
execution and delivery of this Agreement, the
incurrence of the obligations herein set forth and
the consummation of the transactions contemplated
herein will not conflict with or constitute a breach
of, or default under, and no event has occurred
which, with notice or lapse of time or both, would
constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance,
that, individually or in the aggregate, would have a
material adverse effect on the financial condition,
results of operations or business affairs of the
Company, the Mutual Holding Company, the Mid-Tier
Holding Company, the Bank and the Bank's subsidiaries
considered as one enterprise, upon any property or
assets of the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank or the Bank's
subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank or
the Bank's subsidiaries is a party or by which any of
them may be bound, or to which any of the property or
assets of the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank or the Bank's
subsidiaries is subject.
(xv) The Prospectus has been duly authorized
by the OTS for final use pursuant to the Conversion
Regulations and no action is pending, or to the best
of such counsel's knowledge, is threatened, by the
OTS to revoke such authorization.
(xvi) The Plan has been duly adopted by the
required vote of the directors of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company
and the Bank and based upon the certificate of the
inspector of election, by the stockholders of the
Bank and the members of the Mutual Holding Company.
(xvii) The Registration Statement is
effective under the Securities Act and no stop order
suspending the effectiveness of the Registration
Statement has been issued under the Securities Act
or, to the best of such counsel's knowledge,
proceedings therefor initiated or threatened by the
Commission.
(xviii) No further approval, authorization,
consent or other order of any public board or body is
required in connection with the execution and
delivery of this Agreement, the issuance of the
Securities and the consummation of the Conversion,
except as may be required under the securities or
Blue Sky laws of various jurisdictions as to
30
which no opinion need be rendered. To the best of
such counsel's knowledge, the Conversion has been
consummated in all material respects in accordance
with all applicable provisions of the HOLA and the
Conversion Regulations.
(xix) At the time the Registration Statement
became effective, the Registration Statement (other
than the financial statements and statistical data
included therein, as to which no opinion need be
rendered) complied as to form in all material
respects with the requirements of the Securities Act
and the Securities Act Regulations and the Conversion
Regulations and federal law.
(xx) At the time the Conversion
Applications, including the Prospectus contained
therein, were approved by the OTS, the Conversion
Applications, including the Prospectus contained
therein, complied as to form in all material respects
with the requirements of the Conversion Regulations,
federal law and all applicable rules and regulations
promulgated thereunder (other than the financial
statements, the notes thereto, and other tabular,
financial, statistical and appraisal data included
therein, as to which no opinion need be rendered).
(xxi) The Common Stock conforms, in all
material respects, to the description thereof
contained in the Prospectus, and the form of
certificate used to evidence the Common Stock is in
due and proper form and complies with all applicable
statutory requirements.
(xxii) To the best of such counsel's
knowledge, there are no legal or governmental
proceedings pending or threatened against or
affecting the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank or the Bank's
subsidiaries which are required, individually or in
the aggregate, to be disclosed in the Registration
Statement and Prospectus, other than those disclosed
therein, and all pending legal or governmental
proceedings to which the Company, the Mutual Holding
Company, the Mid-Tier Holding Company, the Bank or
any of the Bank's subsidiaries is a party or to which
any of their property is subject which are not
described in the Registration Statement, including
ordinary routine litigation incidental to the
business, are, considered in the aggregate, not
material.
(xxiii) The information in the Prospectus
under "Dividend Policy," "Regulation," "Taxation,"
"The Conversion and Reorganization Tax Aspects,"
"Restrictions on Acquisitions of the Company and the
Bank" and "Description of Capital Stock," to the
extent that it
31
constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, has been reviewed by them and is
complete and accurate in all material respects.
(xxiv) To the best of such counsel's
knowledge, there are no material contracts,
indentures, mortgages, loan agreements, notes, leases
or other instruments required to be described or
referred to in the Registration Statement or to be
filed as exhibits thereto other than those described
or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are
correct, and no default exists, and no event has
occurred which, with notice or lapse of time or both,
would constitute a default, in the due performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed.
(xxv) To the best of such counsel's
knowledge, the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries have obtained all licenses, permits and
other governmental authorizations currently required
for the conduct of their respective businesses as
described in the Registration Statement and
Prospectus, and all such licenses, permits and other
governmental authorizations are in full force and
effect, and the Company, the Mutual Holding Company,
the Mid-Tier Holding Company, the Bank and the Bank's
subsidiaries are in all material respects complying
therewith.
(xxvi) The Company is not required to be
registered as an investment company under the
Investment Company Act of 1940.
(xxvii) The Company's and the Mid-Tier
Holding Company's Certificates of Incorporation and
Bylaws comply in all material respects with the
Pennsylvania Business Corporation Law. The Bank's and
the Mutual Holding Company's Charters and Bylaws
comply in all material respects with the Rules and
Regulations of the OTS.
(2) The favorable opinion, dated as of Closing Time,
of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. ("Xxxxx, Xxxx"),
counsel for the Agent, with respect to the matters set forth
in Section 5(b)(1)(i), (iv), (v), (vi) (solely as to
preemptive rights arising by operation of law), (xiii), (xvii)
and (xviii) and such other matters as the Agent may reasonably
require.
32
(3) In giving their opinions required by subsections
(b)(l) and (b)(2), respectively, of this Section, Xxxxxxx,
Spidi, and Xxxxx, Xxxx each shall additionally state that
nothing has come to their attention that would lead them to
believe that the Registration Statement (except for financial
statements and schedules and other financial or statistical
data included therein, as to which counsel need make no
statement), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (except for financial statements and schedules and
other financial or statistical data included therein, as to
which counsel need make no statement), at the time the
Registration Statement became effective or at Closing Time,
included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. In giving their
opinions, Xxxxxxx, Spidi and Xxxxx, Xxxx may rely as to
matters of fact on certificates of officers and directors of
the Company, the Mutual Holding Company, the Mid-Tier Holding
Company and the Bank and certificates of public officials, and
as to certain matters of Pennsylvania law upon the opinion of
local counsel, which opinions shall be in form and substance
satisfactory to counsel for the Agent, and Xxxxx, Xxxx may
also rely on the opinion of Xxxxxxx, Spidi.
(c) At Closing Time referred to in Section 2, the Company, the
Mutual Holding Company, the Mid-Tier Holding Company and the Bank shall
have completed in all material respects the conditions precedent to the
Conversion in accordance with the Plan, the applicable Conversion
Regulations and all other applicable laws, regulations, decisions and
orders, including all terms, conditions, requirements and provisions
precedent to the Conversion imposed upon the Company or the Bank by the
OTS, or any other regulatory authority other than those which the OTS
permits to be competed after the Conversion.
(d) At Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given
in the Registration Statement and the Prospectus, any material adverse
change in the financial condition, results of operations or business
affairs of the Company, the Mutual Holding Company, the Mid-Tier
Holding Company, the Bank and the Bank' subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and the Agent shall have received a certificate of the Chief Executive
Officer of the Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank, the President of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company and the Bank and the
chief financial or chief accounting officer of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company and the Bank, dated as of
Closing Time, to the effect that (i)
33
there has been no such material adverse change, (ii) there shall have
been no material transaction entered into by the Company, the Mutual
Holding Company, the Mid-Tier Holding Company or the Bank from the
latest date as of which the financial condition of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company or the Bank as set
for the in the Registration Statement and the Prospectus other than
transactions referred to or contemplated therein and transactions in
the ordinary cause of business, (iii) none of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company or the Bank shall have
received from the OTS any direction (oral or written) to make any
material change in the method of conducting its business with which it
has not complied (which direction, if any, shall have been disclosed to
the Agent) or which materially and adversely would affect the business,
financial condition or results of operations of the Company, the Mutual
Holding Company, the Mid-Tier Holding Company or the Bank, (iv) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of
Closing Time, (v) the Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at
or prior to Closing Time, (vi) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission and (vii) no order suspending the Syndicated Community
Offering or the authorization for final use of the Prospectus has been
issued and no proceedings for that purpose have been initiated or
threatened by the OTS or the FDIC and no person has sought to obtain
regulatory or judicial review of the action of the OTS in approving the
Plan in accordance with the Conversion Regulations nor has any person
sought to obtain regulatory or judicial review of the action of the OTS
in approving the Holding Company Application.
(e) At the time of the execution of this Agreement, the Agent
shall have received from Deloitte & Touche a letter dated such date, in
form and substance satisfactory to the Agent, to the effect that (i)
they are independent public accountants with respect to the Company,
the Bank and its subsidiaries within the meaning of the Code of Ethics
of the American Institute of Certified Public Accountants, the
Securities Act and the Securities Act Regulations and the Conversion
Regulations; (ii) it is their opinion that the consolidated financial
statements and supporting schedules included in the Registration
Statement and covered by their opinions therein comply as to form in
all material respects with the applicable accounting requirements of
the Securities Act and the Securities Act Regulations; (iii) based upon
limited procedures as agreed upon by the Agent and Deloitte & Touche
set forth in detail in such letter, nothing has come to their attention
which causes them to believe that (A) the unaudited financial
statements and supporting schedules of the Bank and its subsidiaries
included in the Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act, the Securities Act Regulations and the
34
Conversion Regulations or are not presented in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus, (B) the
unaudited amounts of net interest income and net income set forth under
"Selected Financial Information" in the Registration Statement and
Prospectus do not agree with the amounts set forth in unaudited
consolidated financial statements as of and for the dates and periods
presented under such captions or such amounts were not determined on a
basis substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included in
the Registration Statement, (C) at a specified date not more than five
days prior to the date of this Agreement, there has been any increase
in the consolidated long term or short term debt of the Bank and its
subsidiaries or any decrease in consolidated total assets, the
allowance for loan losses, total deposits or net worth of the Bank and
its subsidiaries, in each case as compared with the amounts shown in
the _____________, 199__ balance sheet included in the Registration
Statement or, (D) during the period from ______________, 199__ to a
specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the corresponding
period in the preceding year, in total interest income, net interest
income, net interest income after provision for loan losses, income
before income tax expense or net income of the Bank and its
subsidiaries, except in all instances for increases or decreases which
the Registration Statement and the Prospectus disclose have occurred or
may occur; and (iv) in addition to the examination referred to in their
opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and
Prospectus and which are specified by the Agent, and have found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company,
the Bank and its subsidiaries identified in such letter.
(e) At Closing Time, the Agent shall have received from
Deloitte & Touche a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that the specified date
referred to shall be a date not more than five days prior to Closing
Time.
(f) At Closing Time, the Securities shall have been approved
for listing on the Nasdaq National Market upon notice of issuance.
(g) At Closing Time, the Agent shall have received a letter
from FinPro, dated as of the Closing Time, confirming its appraisal.
(h) At Closing Time, counsel for the Agent shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them
35
to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank in connection with the issuance
and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the Agent and counsel for the Agent.
(i) At any time prior to Closing Time, (i) there shall not
have occurred any material adverse change in the financial markets in
the United States or elsewhere or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which it,
in the judgment of the Agent, are so material and adverse as to make it
impracticable to market the Securities or to enforce contracts,
including subscriptions or orders, for the sale of the Securities, and
(ii) trading generally on either the American Stock Exchange or the New
York Stock Exchange shall not have been suspended, and minimum or
maximum prices for trading shall not have been fixed, or maximum ranges
for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental
authority, and a banking moratorium shall not have been declared by
either Federal or New York authorities.
SECTION 6. INDEMNIFICATION.
(a) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank, jointly and severally, agree to indemnify and hold
harmless the Agent, its officers, directors are employees and each person, if
any, who controls the Agent, within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act, and its respective partners,
directors, officers, employees and agents as follows:
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, (including, but not limited to,
settlement expenses) as incurred, related to or arising out of the
Conversion or any action taken by the Agent where acting as agent of
the Company or the Bank or otherwise as described in Section 2 hereof;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense found in a final judgment by
a court of competent jurisdiction to have resulted primarily from the
bad faith, willful misconduct or gross negligence of the Agent seeking
indemnification hereunder.
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, based upon or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged
36
untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(iii) from and against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever described in
clauses (i) or (ii) above, if such settlement is effected with the
written consent of the Company or the Bank, which consent shall not be
unreasonably withheld; and
(iv) from and against any and all expense whatsoever,
as incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the Agent), reasonably incurred in
investigating, preparing for or defending against any litigation, or
any investigation, proceeding or inquiry by any governmental agency or
body, commenced or threatened, or any claim whatsoever described in
clauses (i) or (ii) above, to the extent that any such expense is not
paid under (i), (ii) or (iii) above; provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading which was made in reliance upon and in
conformity with written information relating to the Agent furnished to
the Company, the Mutual Holding Company, the Mid-Tier Holding Company
or the Bank by the Agent expressly for use in the Prospectus (or any
amendment or supplement thereto). Notwithstanding the foregoing, the
indemnification provided for in this paragraph (a) shall not apply to
the Bank to the extent that such indemnification by the Bank would
constitute a covered transaction under Section 23A of the Federal
Reserve Act.
(b) The Agent agrees to indemnify and hold harmless the
Company, the Mutual Holding Company, the Mid-Tier Holding Company and/or the
Bank, their directors and trustees, each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company, the
Mutual Holding Company, the Mid-Tier Holding Company and/or the Bank within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, of a material fact made in the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of
37
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it otherwise may have than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to no more than one local counsel
in each separate jurisdiction in which any action or proceeding is commenced)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) The Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank also agree that the Agent shall not have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Bank, the Mutual Holding Company, the Mid-Tier Holding Company, the Company, the
Company's security holders or the Bank's the Mutual Holding Company's, the
Mid-Tier Holding Company's or the Company's creditors relating to or arising out
of the engagement of the Agent pursuant to, or the performance by the Agent of
the services contemplated by, this Agreement, except to the extent that any
loss, claim, damage or liability is found in a final judgment by a court of
competent jurisdiction to have resulted primarily from the Agent's bad faith,
willful misconduct or gross negligence.
(e) In addition to, and without limiting, the provisions of
Section (6)(a)(iv) hereof, in the event that any Agent, any person, if any, who
controls the Agent within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act or any of its partners, directors, officers,
employees or agents is requested or required to appear as a witness or otherwise
gives testimony in any action, proceeding, investigation or inquiry brought by
or on behalf of or against the Company, the Mutual Holding Company, the Mid-Tier
Holding Company, the Bank, the Agent or any of its respective affiliates or any
participant in the transactions contemplated hereby in which the Agent or such
person or agent is not named as a defendant, the Company, the Mutual Holding
Company, the Mid-Tier Holding Company and the Bank jointly and severally agree
to reimburse the Agent for all reasonable and necessary out-of-pocket expenses
incurred by it in connection with preparing or appearing as a witness or
otherwise giving testimony and to compensate the Agent in an amount to be
mutually agreed upon.
(f) The agreements contained in this Section 6 and in Section
7 hereof and the representations and warranties of the Company, the Mutual
Holding Company, the Mid- Tier Holding Company and the Bank set forth in this
Agreement shall remain operative and in full force and effect regardless of: (i)
any investigation made by or on behalf of agents or their officers, directors or
controlling persons, agents or employees or by or on behalf of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company or the Bank or any
officers, directors or controlling persons, agents or employees of the Company
the Mutual Holding Company, the Mid-Tier Holding Company or the Bank; (ii)
delivery of and payment hereunder for the Securities; or (iii) any termination
of this Agreement.
38
SECTION 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 6 hereof is for any reason held by a court to be
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company, the Mutual Holding Company, the Mid-Tier Holding
Company, the Bank and the Agent shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company, the Mutual Holding Company, the
Mid-Tier Holding Company or the Bank and the Agent, as incurred, in such
proportions (i) that the Agent is responsible for that portion represented by
the percentage that the maximum aggregate marketing fees appearing on the cover
page of the Prospectus bears to the maximum aggregate gross proceeds appearing
thereon and the Company, the Mutual Holding Company, the Mid-Tier Holding
Company and the Bank are jointly and severally responsible for the balance or
(ii) if, but only if, the allocation provided for in clause (i) is for any
reason held unenforceable, in such proportion as is appropriate to reflect not
only the relative benefits to the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank on the one hand and the Agent on the
other, as reflected in clause (i), but also the relative fault of the Company,
the Mutual Holding Company, the Mid-Tier Holding Company and the Bank on the one
hand and the Agent on the other, as well as any other relevant equitable
considerations; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls the Agent within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Agent, and each director of the Company, and the Mid-Tier Holding Company, each
trustee of the Bank and the Mutual Holding Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company, the Mutual Holding Company, the Mid-Tier Holding Company or the Bank
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as the Company, the
Mutual Holding Company, the Mid-Tier Holding Company and the Bank.
Notwithstanding anything to the contrary set forth herein, to the extent
permitted by applicable law, in no event shall the Agent be required to
contribute an aggregate amount in excess of the aggregate marketing fees to
which the Agent is entitled and actually paid pursuant to this Agreement.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company, the
Mutual Holding Company, the Mid-Tier Holding Company or the Bank submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Agent or controlling person, or
by or on behalf of the Company, the Mutual Holding Company, the Mid-Tier Holding
Company or the Bank and shall survive the issuance of the Securities, and any
successor or assign of the Agent, the Company, the Mutual Holding Company, the
Mid-Tier Holding Company or the Bank, and any such controlling person
39
shall be entitled to the benefit of the respective agreements, indemnities,
warranties and representations.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Agent may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the date of this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in the
financial condition, results of operations or business affairs of the Company,
the Mutual Holding Company, the Mid-Tier Holding Company or the Bank, or the
Company, the Bank and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which it, in the judgment of the Agent, are so material
and adverse as to make it impracticable to market the Securities or to enforce
contracts, including subscriptions or orders, for the sale of the Securities,
(iii) or if trading generally on either the American Stock Exchange or the New
York Stock Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said Exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities, (iv) if any condition specified in Section 5
shall not have been fulfilled when and as required to be fulfilled; (v) if there
shall have been such material adverse change in the condition or prospects of
the Company, the Mutual Holding Company, the Mid-Tier Holding Company or the
Bank or the prospective market for the Company's securities as in the Agent's
good faith opinion would make it inadvisable to proceed with the offering, sale
or delivery of the Securities; (vi) if in the Agent's good faith opinion, the
price for the Securities established by FinPro is not reasonable or equitable
under then prevailing market conditions, or (vii) if the Conversion is not
consummated on or prior to March 31, 1999.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof relating to the reimbursement of expenses
and except that the provisions of Sections 6 and 7 hereof shall survive any
termination of this Agreement.
SECTION 10. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Agent shall be directed to the Agent at Two World Trade Center, 104th Floor, New
York, New York 10048, attention of Xxxxxxxxx X. Xxxxxx, Vice President; notices
to the Company and the Bank shall be directed to either of them at 0000 Xxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, attention of Xxxx X. XxXxxx, Xx.,
President.
40
SECTION 11. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Agent, the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Agent, the Company, the
Mutual Holding Company, the Mid-Tier Holding Company and the Bank and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein or therein contained. This Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Agent, the Company, the Mutual Holding Company, the Mid-Tier
Holding Company and the Bank and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
SECTION 12. ENTIRE AGREEMENT; AMENDMENT. This Agreement
represents the entire understanding of the parties hereto with reference to the
transactions contemplated hereby and supersedes any and all other oral or
written agreements heretofore made, except for the engagement letter dated
February 24, 1998, by and among the Agent and the Company and the Bank, relating
to the Agent's providing conversion agent services to the Company and the Bank
in connection with the Conversion. No waiver, amendment or other modification of
this Agreement shall be effective unless in writing and signed by the parties
hereto.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania applicable to agreements made and to be performed in said
Commonwealth without regard to the conflicts of laws provisions thereof. Unless
otherwise noted, specified times of day refer to Eastern time.
SECTION 14. SEVERABILITY. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
SECTION 15. HEADINGS. Sections headings are not to be
considered part of this Agreement, are for convenience and reference only, and
are not to be deemed to be full or accurate descriptions of the contents of any
paragraph or subparagraph.
41
SECTION 16. COUNTERPARTS. This Agreement may be executed in
separate counterparts, each of which so executed and delivered shall be an
original, but all of which together shall constitute but one and the same
instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Agent, the Company, the Mutual Holding Company, the
Mid-Tier Holding Company and the Bank in accordance with its terms.
THISTLE GROUP HOLDINGS, CO. ROXBOROUGH-MANAYUNK FEDERAL
SAVINGS BANK
By: By:
-------------------------------------------- -------------------------------------
Xxxx X. XxXxxx, Xx. Xxxx X. XxXxxx, Xx.
President and Chief Executive Officer President and Chief Executive Officer
FJF FINANCIAL, M.H.C. THISTLE GROUP HOLDINGS, INC.
By: By:
-------------------------------------------- -------------------------------------
Xxxx X. XxXxxx, Xx. Xxxx X. XxXxxx, Xx.
President and Chief Executive Officer President and Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
SANDLER X'XXXXX & PARTNERS, L.P.
By: Sandler X'Xxxxx & Partners Corp.,
the sole general partner
By:
--------------------------------------------
Xxxxxxxxx X. Xxxxxx
Vice President
